Commissioners want certainty in legality of decision

Mequon — The Planning Commission's second crack at the Azura Memory Care of Mequon proposal played out like a court trial Monday, with an abundance of resident testimony interspersed with attorneys on both sides of the issue arguing their cases before an attentive, near-capacity crowd.

It was then up to City Attorney John DeStefanis to attempt to make sense of the various legal claims and clarify for the commissioners what they could and could not do according to state law. Yet even with his advice, the commissioners weren't sure their actions could hold up in court and tabled Azura's request for the second time.

The 14 residents who addressed the commission on the proposal were unanimously opposed to Azura's plans. Faced with conflicting legal opinions from attorneys representing the developer and neighbors — who unsurprisingly offered interpretations favorable to their clients — the commission tasked DeStefanis with sorting it all out to produce a definitive legal opinion for their next meeting.

"I'm troubled that if we go forward tonight we're going to put Mequon back in court," commissioner Pat Marchese said.

Change of plan

Precipitating the varied legal arguments Monday was a major change in Azura's request to the commission. In the original application, Azura had requested the land be rezoned from residential to institutional and public service to accommodate the memory facility.

Since the meeting in January, Azura's lawyer has interpreted state statutes in such a way that a rezoning of the property is not necessary, and that the memory care facility could be designated as a "community based residential facility" and only require a conditional use grant.

Such a designation would make it significantly easier for Azura to gain approval, since the previous zoning request would have required super majority — six of eight — approval at the Common Council due to protest petitions filed by the neighbors.

"We felt that if we didn't have to do the rezoning that's one less thing to deal with," said Bob Stelter of Advisors, the local real estate broker working on Azura's behalf.

Typically a conditional use grant's last stop is the Planning Commission unless members of the Common Council request to bring it to the council for consideration, Assistant Community Development Director Jac Zader said.

Azura's change of plan didn't sit well with the neighbors. An attorney on behalf of the Timarac family, who own a significant amount of property abutting the proposal site and have offered to buy the property themselves to keep it residential, argued that Azura's interpretation was flawed and that their argument "just doesn't make sense."

Mequon attorney Amy Seibel, speaking in opposition to the proposal, said Azura's plan is simply too big and too dense to comply with community based residential facility standards.

Zoning powers unclear

The variety of legal opinions, dozens of pages of which landed on DeStefanis' desk Monday morning, made the situation unclear.

"I know this is going to shock you," DeStefanis told the commission, "but we've got this bunch of lawyers and none of us seems to agree with the other."

DeStefanis said that rezoning or a conditional use grant would be acceptable under the community based residential facility statutes, though a grant denial would only be valid if the city could prove that restrictions could not eliminate the negative impact of the project on neighbors.

The commission was not confident enough in that opinion to go forward with a denial, as several commissioners appeared to be leaning.

As was the case at the January meeting, Marchese said the commission should stick to the original zoning if it wants to keep the Mequon Road corridor from slowly commercializing.

"Twenty years from now, the whole south side of Mequon Road is going to be full of CBRFs. There has to be a way that Mequon can control its future through the zoning," Marchese said, drawing a lasting round of applause from the crowd of residents.

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